[2020] KEHC 1123 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

Coram: D. K. Kemei - J

CRIMINAL (MURDER) CASE NO. 57 OF 2013

REPUBLIC.....................................................PROSECUTOR

VERSUS

GOO........................................................................ACCUSED

JUDGEMENT

1. The accused in this case is charged with one count of murder contrary to section 203 as read with section 204 of the Penal Code. It is alleged that the accused on the 6th Day of November, 2013 at Kosovo Area in Athi River District within Machakos County murdered BOO (hereinafter referred to as the deceased). The accused pleaded not guilty to the charge.

2. The accused was represented by Mutinda Kimeu while the state was represented by Machogu and later by Mwongera.

3. In a bid to prove the charge against the accused, the prosecution marshalled 7 (seven) witnesses then closed its case.

4. PW1 Mercy Mbula Kyenzetestified that on 6. 11. 2013 she received a call at 10 pm that the deceased had been killed. She went to the scene at Kosovo area and found the deceased had blood oozing from his mouth and nose and that people wanted to lynch the accused.

5. PW2wasCosmas Musyoki Nzanga who testified that on 6. 11. 2013 he received a call that someone had strangled his son but he did not visit the scene. He stated that he alerted the area District Officer and Athi River OCS to pursue the matter.

6. PW3 Musau Kimulitestified that on the material day at 10 pm some men came and informed him that a person had been spotted struggling with a child and later the accused was arrested and led members of public to his house where the body of the deceased was discovered.

7. PW4 Nathan Kavita Mutuatestified that on 8. 9.2013 he was at his plot and at 1 pm a man called Geoffrey Otieno sought for a house to rent and later he came with a 5-year-old boy and that on 6. 11. 2013 at 9 pm he went to collect the rent from the accused who indicated that he had no money. He left him and went to his residence within the plot and at 11 pm he heard noises and later learnt from the crowd that the accused had killed the deceased and that the members of the public wanted to lynch him. He added that the accused opened his house where the body of the deceased was found and that the irate mob wanted to lynch him.

8. PW5 Dr Fredrick Okinyitestified that he conducted a post mortem on the body of the deceased and established the cause of death as strangulation (asphyxia).

9. PW6 Cpl Peter Macharia (retired)told the court that on 6. 11. 2013 he was on night duty when he received a report of murder and he rushed to the scene and found the deceased who was bleeding from the mouth as well as the accused in a rented room. He added that the accused was already tied with ropes and that the members of public informed him that the accused was responsible for the death of the deceased. He arrested the accused and escorted him to the police station and later took the body to Machakos Hospital mortuary.

10. PW7 Pc Jepchirchir Raeltold the court that she was handed over the police file in respect of this case by the outgoing investigating officer Pc Peter Njonjo whose statement she produced in court as an exhibit.

11. The prosecution closed their case. The court on 17. 10. 2019 found that a prima facie case had been made out against the accused who was placed on his defence. The defence hearing was duly conducted on 8. 7.2020.

12. The accused testified that the charges were false. He told the court that on 6. 11. 2013 he was at work then he joined his family at Makadara Estate in Athi River. He testified that he received a call from the plot caretaker that his wife had disagreed with one of the tenants and so he rushed to the police station upon receiving information that she had been arrested. It was his testimony that his wife was charged and later remanded and he was left alone with the children. He told the court that later he arrived from work and found his children missing and in the process of searching for them, he found a large crowd on the plot belonging to Pw4 that claimed to have seen a body of a child. He testified that he recognized the body as that of his missing boy. He vehemently denied killing the deceased and pointed out that none of the witnesses who witnessed the incident testified. It was his testimony on cross examination that he was a responsible parent and he denied beating the deceased.

13. The parties agreed to rely on the submissions that had been made for and against a case to answer. The same are repeated here below.

14. Counsel for the prosecution submitted that the evidence on record placed the accused at the scene of the crime as corroborated by the evidence of Pw4 who saw him on the material day. Counsel in placing reliance on section 206 of the Penal Code submitted that malice aforethought is proven by the nature of injuries and that the death was proven by the post mortem report. He invited the court to make a finding that all the ingredients of the offence of murder were proved against the accused.

15. Learned counsel for the accused in placing reliance on the case of Bhatt v R (1957) EA submitted that there is no evidence that the accused committed murder because none of the seven prosecution witnesses witnessed the incident and that no weapon was produced in evidence. He urged the court to acquit the accused.

16. Having considered the evidence on record and the submissions of the parties, the issue for determination is whether the prosecution proved its case to the required standard.

17. The burden to prove all ingredients of the offence of murder beyond reasonable doubt falls on the prosecution in all save a few statutory offences. Proof beyond reasonable doubt has however been stated not to mean proof beyond any shadow of doubt. The standard is discharged when the evidence against the accused is so strong that only a little doubt is left in his favour. See Miller v Minister of Pensions [1947] 1 All. E.R 372. In discharging the burden cast upon it by the law, the prosecution is required to adduce strong evidence to place the accused at the scene of crime as the assailant since he does not have the burden to prove his innocence or to justify his alibi. For a conviction to be secured, the court considers the strength of the evidence by the prosecution and not the weakness of the defence raised by the accused person.

18. The prosecution must prove all the ingredients of the offence of murder in order to sustain a conviction thereof. As per the elements provided for under section 203 as read with section 204 of the Penal Code, prosecution must prove beyond reasonable doubt that there was death of a human being and that it was unlawfully caused with malice aforethought either directly or indirectly by the accused person.

19. As regards the aspect of death, the undisputed post mortem report (Pexh 1) tendered by PW5 indicates that the deceased indeed died. At the time of discovery, the body was found lying on a mattress inside a room that had been rented by the accused from Pw4.

20. On the issue of the cause of death, Dr. Fredrick Okinyi (PW.6) conducted the post mortem on the body of the deceased. It was noted that the body appeared to have strangulation and the cause of death was strangulation (asphyxia).

21. On the issue of the unlawful nature of the death, and identity of the accused, the law presumes every homicide to be unlawful unless it occurs as a result of an accident or is one authorized by law. None of the witnesses saw the accused committing the dastardly act. Pw1, Pw2 and Pw3 only heard of what happened while Pw4 heard noises that turned out to be by irate members of public seeking to lynch the accused. These respective testimonies were not backed by any supporting evidence. However, I find it safe to presume that the death was unlawful though I am not satisfied that the accused caused the death of the deceased.

22. I have considered the evidence adduced by the accused who testified that on the material day he returned home and found the deceased missing and in the process of searching for the deceased he discovered that he was dead. His evidence imputes a defence of alibi; that the accused was away at work and returned when the wrongful act had already been done. It is trite law that when an accused person sets up a defence of alibi, then the role of the prosecution is to prove that the accused was at the scene of crime and committed the wrongful act. From the prosecution evidence there is nothing to convince me that there was a connection between the accused and the death of the deceased.

23. On the issue of malice aforethought, courts consider the nature of the weapon used, the parts of the body attacked, the number of times the weapon is used on the victim and the conduct of the assailant before, during and after the attack. As it transpired from the evidence the manner of the attack upon the deceased left no doubt that the assailant intended to inflict upon the deceased grievous injuries which led to the death. It can safely be inferred that death was the desired outcome of whoever the assailant was. I have considered the injuries occasioned to the deceased. The post mortem report indicated that the deceased had been strangled and from the evidence on record, one cannot say that it was the accused who occasioned the injuries, neither can one say that it was not the accused who was involved in occasioning the injuries. The evidence as presented seems to be mere suspicion. In fact the prosecution case seems to state that the accused was the only person who had an opportunity to harm the deceased as he was seen with the deceased and he lived with him.

24. Because the evidence on record is too scanty and not sufficient to point towards guilt of the accused, this creates some doubt in the prosecution case as regards the accused as the perpetrator. The evidence of Pw1, Pw2 and Pw3 alludes to a claim that somebody who was with the deceased had left his bag along the road which was later picked up and taken to the police station. None of the persons who had witnessed such a thing were called to testify. Again, the prosecution did not present evidence that the said bag belonged to the accused or even produced it as an exhibit. None of the witnesses pinpointed the accused as the assailant. The accused in his defence maintained that he was away at his place of work and on coming home he found the children missing and then started searching for them and was arrested while in the process. Circumstantial evidence alone would not be sufficient to sustain a conviction against the accused without other co-existing facts. The investigations in the alleged crime were not properly conducted and which could explain why the investing officer Pc Peter Njonjo avoided coming to court to testify as he is claimed to have dodged his colleague Pc Rael Chepchirchir during the hearing of this matter. It is trite law that if doubt is created in the prosecution case then the same ought to be resolved in favour of the accused. What emerges from the evidence is that it is not crystal clear that it is none other than the accused who had the opportunity to murder the deceased. I am persuaded to give the accused the benefit of doubt. It will be a travesty of justice to convict an accused where the circumstances of his involvement in the alleged crime is in doubt. Accordingly, therefore, I find that the availed eye witness account and the circumstantial evidence elicited from the testimony of the witnesses has not established the offence of murder against the accused beyond reasonable doubt.

25. In the result it is my finding that the prosecution has not proved the charge of murder against the accused GOObeyond any reasonable doubt. I find him not guilty and is accordingly acquitted of the charge. He is to be set at liberty forthwith unless otherwise lawfully held.

It is so ordered.

Dated and delivered at Machakos this 9th day of December, 2020.

D. K. Kemei

Judge